Washington state’s Blakely fix

Last Friday, the Governor of Washington signed the state’s Blakely fix bill, which can be read here. Here is how this legislation was describe to me in an e-mail:

The law, which takes effect immediately, Blakely-izes the Washington state guidelines.  It lengthens the former list of aggravators to include all “common law,” unenumerated aggravators that had been judicially created and approved over the years, but then says that the list is now exclusive.  Most aggravators, if contested, are to be proven during the trial.  The trial judge, however, may hold a separate sentencing hearing with respect to four named aggravators if certain conditions are met.

With this legislation, Washington joins a growing number of states willing to give effect to Blakely by providing for jury determinations of aggravating factors.  And there are a number of interesting facets to this legislation.  For example, Section 5 provides for the state sentencing commission to do a comprehensive review of the state sentencing system and “submit its findings and proposed legislation to the legislature no later than December 1, 2005.” 

Also, in Section 3, this Blakely fix legislation provides through subsections (2) (b), (c) & (d) for judges to be able to increase sentences without jury findings based on a range of aggravating factors relating to criminal history.  However, the constitutionality of this procedure depends on a broad reading of the Almendarez-Torres “prior conviction exception.”  And, just the day before this fix was enacted, the Washington state supreme court in Hughes (basics here, commentary here) seemed to give the Almendarez-Torres “prior conviction exception a narrow reading.  Thus, the Washington state’s Blakely fix may already need fixing.